CLA-2 CO:R:C:T 088454 CMR

Brian Burke, Esq.
Rode & Qualey
295 Madison Avenue
New York, New York 10017

RE: Revocation of Inconsistent Classification Rulings on "Leggings"; Tights vs. Trousers; 6115, HTSUSA, vs. 6104, HTSUSA

Dear Mr. Burke:

This ruling is in response to your request of January 8, 1991, regarding two inconsistent Customs rulings which your client Regaliti, Inc., received on virtually identical merchandise to be imported from Hong Kong. Customs received additional submissions from you on this matter and the information and arguments contained therein have been taken into consideration in this response. Sample garments were received for Customs consideration.


Your client, Regaliti, received a classification ruling from New York Customs, NYRL 854333 of August 7, 1990, classifying merchandise identified as styles 4892G and 4812G as tights of heading 6115, HTSUSA. Subsequently, Regaliti received classification rulings from Customs in Boston and Newark, BORL 857484 of November 6, 1990, for styles 4813 and 4811, and NJRL 857485 of November 19, 1990, for styles 4835 and 4999, respectively. These rulings classified garments which were extremely similar to styles 4892G and 4812G as trousers of heading 6104, HTSUSA.

The garments which were the subject of the rulings at issue are all made from 95 percent cotton/5 percent spandex knit fabric. Each garment has an elastic waistband formed by a nearly one-inch elastic band covered by the fabric of the garment, a diamond-shaped gusset in the crotch and hemmed leg -2-

bottoms. The garments conform to the contours of the wearer's body and differ only in length. It is claimed the garments were designed for use during exercise.


Are the garments at issue, styles 4892G, 4812G, 4813, 4811, 4835, and 4999, which are known as "leggings" properly classifiable as tights of heading 6115, HTSUSA, or as trousers or shorts (depending on garment length) of heading 6104, HTSUSA?


Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

Customs takes note of the fact that the garments at issue are relatively new creations of the fashion industry, as is the use of the term "leggings" to describe them. The term "leggings" by which they are known commercially was not in wide-spread use when the current tariff was adopted. However, the tariff does contain a provision which includes leggings, i.e., heading 6406, HTSUSA, which provides for, inter alia, gaiters, leggings and similar articles. A gaiter is defined in The American Heritage Dictionary, (2nd College Ed. 1982), as:

1. A leather or heavy cloth covering for the legs extending from the instep to the ankle or knee. 2. An ankle-high shoe with elastic sides. 3. An overshoe with a cloth top.

From the same source, leggings are defined as:

A leg covering of material such as canvas or leather.

Fairchild's Dictionary of Fashion, (2nd Ed. 1988), defines legging as:

Covering for leg and ankle extending to knee or sometimes secured by stirrup strap under arch of foot. Worn in 19th c. by armed services and by civilian men. See PUTTEE and GAITER. Worn by women in suede, patent, and fabric in late 1960s.

It seems clear from the above definitions that the leggings classified in heading 6406, HTSUSA, are not the same merchandise that is at issue here.


In determining the proper classification of the garments at issue, two headings clearly merit consideration. These are heading 6104, HTSUSA, which provides for, inter alia, trousers, breeches and shorts, and heading 6115, HTSUSA, which provides for, inter alia, tights.

It is a well-established tenet of customs law that tariff terms are construed in accordance with their common and commercial meanings and that the common meaning of a tariff term is a question of law. Toyota Motor Sales, U.S.A., Inc. v. United States, 7 CIT 178, 182, 585 F. Supp. 649 (1984), aff'd, 753 F.2d 1061 (Fed. Cir. 1985). You assert that the garments at issue here are classified under heading 6115, HTSUSA, as tights based on the classification principle of eo nomine designation and the common meaning of the term tights.

The HTSUSA and the Explanatory Notes to the Harmonized System are silent on the meaning of the term tights. However, trousers are defined in the Explanatory Notes as:

garments which envelop each leg separately, covering the knees and usually reaching down to or below the ankles; these garments usually stop at the waist; the presence of braces does not cause these garments to lose the essential character of trousers.

As the tariff is silent regarding the meaning of tights, it is reasonable and proper to look to lexicographic sources. In support of your contention you provided the following dictionary definitions for tights:

A close-fitting, stretchable garment covering the body from the waist or the neck down and worn especially by dancers and gymnasts. Tormont Webster's Illustrative Encyclopedic Dictionary (1990 Ed.)

Skin tight garments covering the body from the neck down or from the waist down and worn especially for ease and display by dancers, acrobats or gymnasts. Webster's Third New International Dictionary, Unabridged (1961 Ed.)

Skin tight garments, usually for the lower part of the body and the legs worn especially by performers in public. Webster's New International Dictionary, Unabridged (2nd Ed.)

Skin-fitting garments, commonly for the legs and lower torso. Funk and Wagnall's New Practical Standard Dictionary (1956 Ed.)


Heading 6115, HTSUSA, provides, in full, for panty hose, tights, stockings, socks and other hosiery, including stockings for varicose veins, and footwear without applied soles, knitted or crocheted. As pointed out in your brief, the statutory canon of construction "noscitur a sociis" is useful in determining the common and commercial meaning of the term tights. With that in mind, Customs has researched various lexicographic sources to discern the common meaning of trousers and of tights, hose and hosiery. The following pertinent definitions were found.


An outer garment of men or boys, extending from the waist to the knee or, oftener and almost always with men, to the ankle, and covering each leg separately. Orig. they were of the nature of long hose or tight drawers and were worn esp. by sailors and soldiers. Webster's New International Dictionary, Unabridged (2nd Ed., 1939)

A usually loose-fitting outer garment for the lower part of the body, having individual leg portions that reach typically to the ankle but sometimes to any of various other points from the upper leg down, worn esp. by men and boys. The Random House Dictionary of the English Language (1983)

An outer garment extending from the waist to the ankle or sometimes only to or just below the knee, covering each leg separately, made close-fitting or loose- fitting in accordance with the fashion of different periods, and worn typically by men and boys. Webster's Third New International Dictionary, Unabridged (1986) [Emphasis added]

Outer garment extending from the waist to below the knee, covering each leg separately. Worn mostly by men and boys. Formerly, very tight, similar to long hose. Mary Brooks Picken, The Fashion Dictionary at 390 (1973)


A skin-tight garment for the lower part of the body and the legs, worn by acrobats, dancers, gymnasts, etc., now often made of stretch fabric; A leotard with legs and, sometimes, feet. The Random House Dictionary of the English Language (1983)


Skintight garments covering the body from the neck down or from the waist down and worn esp. for ease and display by dancers, acrobats, or gymnasts. Webster's Third New International Dictionary, Unabridged (1986)

A snug stretchable garment covering the body from the waist or neck down, worn by acrobats and dancers and also designed for general wear by women and girls. The American Heritage Dictionary, (2nd. College Ed. 1982)

Garment worn skintight, usually covering hips and legs, sometimes entire body. Worn especially by stage performers. Formerly, close-fitting breeches. Mary Brooks Picken, The Fashion Dictionary at 385 (1973)

Knitted pants and stockings made in one piece, usually made of opaque-textured yarns, worn by athletes, circus performers, and dance hall girls in latter part of the 19th c.; Women's and girls' below-the-knee underpants made in fine ribbed knit in either black or white worn in early 20th c.; See Pantyhose. Fairchild's Dictionary of Fashion (2nd Ed. 1988); Also, in Fairchild's within definition for aerobic ensemble: tights are one-piece pantyhose with or without feet and/or stirrups usually made of stretch nylon

Underpants and stockings knit in one piece, worn originally by athletes, circus performers, dancers . . . Charlotte Calasibetta Essential Terms of Fashion (1986)


A leg covering, in modern use covering also the foot, but formerly sometimes reaching only to the ankle; a stocking or stockings; Close-fitting covering for the legs and waist of the general nature of tights, as formerly worn, often fastened to the doublet by ribbons or strings called points; later, breeches reaching only to the knee. Webster's New International Dictionary, Unabridged (2nd Ed., 1939)

A cloth leg covering that reaches down to the ankle and sometimes covers the foot; stocking, sock (a pair of -) -usu. used in pl.; A close-fitting garment similar to tights that covers the body from the waist to and sometimes including the feet and is usu. attached to a doublet by points. Webster's Third New International Dictionary, Unabridged (1986)


Stockings, or covering for lower leg and foot, usually knit or woven. Formerly not made to cover the foot.; Tights, or hose reaching to the waist, formerly fastened to doublet with points. Mary Brooks Picken, The Fashion Dictionary at 195 (1973)


Knit or woven coverings for the feet and legs designed to be worn inside shoes, particularly women's stockings and tights; also socks for men, women, and children. The New Encyclopaedia Britannica Vol. 5, at 147 (1975) (found at beginning of discussion of hosiery)

From these various definitions and applying the doctrine of "noscitur a sociis", Customs concludes tights are a form of hosiery. We do not believe the garments at issue herein, Regaliti's leggings, are a form of hosiery. In Mast Industries v. United States, 9 CIT 549, 552 (1985), aff'd, 786 F. 2d 1144 (1986), the court noted, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963), "the merchandise itself may be strong evidence of use." The garments at issue are form- fitting and cover the lower torso and legs, however, upon examination Customs believes they are more in the nature of trousers, than hosiery. The above-cited definitions of trousers indicate that they are garments which cover the lower torso from the waist to the ankle or, sometimes, simply to the knee, and cover each leg separately. At least one definition above illustrates that trousers may be close-fitting depending on the fashion. Additionally, Customs notes that although the cited definitions refer to trousers as garments worn especially by men or boys, women too wear trousers. Therefore, it would appear that the garments at issue are within the definition of trousers, including the definition contained in the Explanatory Notes of the Harmonized System.

The meaning of the term tights was examined by the Customs Court in Children's Hose Inc., v. United States, 55 Cust. Ct. 6, C.D. 2547 (1965). In that case, the court stated:

[T]he court may take judicial notice of the fact that leotards or tights whether worn by children or women are designed to be at least partially utilized under an outergarment and partially exposed, depending upon the age of the wearer and the purpose for which they are worn. It would, therefore, seem that if a portion of this imported merchandise is underwear, a portion of it is not underwear. By the same token, while the exposed portion may be outerwear, the portion concealed would not be outerwear. -7-

Therefore, the articles at bar are more than underwear and more than outerwear. They are, therefore, in fact "neither fish nor fowl." (at 9 and 10)

It is clear from the language of the court, that tights are garments which are partially underwear and partially outerwear. The extent to which the garment is exposed to view is dependent upon the age of the wearer and the purpose for which the garment is worn. This interpretation would follow some of the previously cited definitions for tights which describe them as knitted pants and stockings in one piece or underpants and stockings knit in one piece.

In United States v. Great Pacific Co., Shui Tai & Co., 23 CCPA 319, 324, T.D. 48192, the court stated:

A common meaning, having been once established and determined by a court, will be presumed to continue until the language is changed by subsequent legislation.

However, the tariff schedules in force at the time of Children's Hose did not have a provision for tights as the current tariff does, nor did it have a provision for trousers. Therefore, while the determination of the court regarding the meaning of the term tights and the manner in which they are designed to be worn is instructive in this case, it is not determinative because the term tights was not part of the statutory language of the tariff at the time of Children's Hose. The meaning of an eo nomine classification is determined as of the time of the enactment of the tariff provision. FAG Bearings, Ltd. v. United States, 9 CIT 227, 228 (1985) In this case, the HTSUSA (of which heading 6115 which provides for tights is part) was enacted as part of the Omnibus Trade and Competitiveness Act of 1988, P.L. 100-418, Title I, sec. 1201, 102 Stat. 1147 (1988), and became effective on January 1, 1989. Nonetheless, Customs does not believe the common meaning of the term tights changed much between 1965 and 1989.

You have argued that the merchandise is essentially within the common meaning of tights because it is body-conforming, covers the lower torso, and is designed for use during exercise. While the definitions of tights indicate their use by athletes and performers, they also indicate that tights are garments for general wear by women and girls. The court in Children's Hose, at 8, recognized that tights are worn for warmth and fashion.

In deciding if the subject garments are within the eo nomine classification for tights, Customs may consider the use of the merchandise. United States v. Quon Quon Co., 46 CCPA 70, 73, -8-

C.A.D. 699 (1959). Customs interprets the use of the merchandise to include the manner in which it is worn as well as the reasons for which it is worn.

Included as part of your submission is a letter from the Vice-President in charge of design for Regaliti Inc., Mr. Robert Fink. In his letter, Mr. Fink states that the styles at issue herein, along with a number of other Regaliti styles, were designed for use during exercise and for that reason should be considered tights. Customs rejects the criteria of athletic use to identify a garment as tights because, as noted above, tights are worn for reasons beyond athletic use. Sweat pants are designed for use during exercise, but that does not make them any less pants. Therefore, Customs will look to the manner in which they are worn.

You have submitted that if worn outside the athletic area, the garments at issue are principally worn with another garment which conceals the lower torso. Customs recognizes that the garments at issue herein belong to a class of garments known commercially as leggings which are usually worn with another garment, such as an oversized shirt or sweater, which covers the lower torso. However, these garments are generally worn in conjunction with a garment which just barely covers the lower torso, i.e., reaches just below the hip area. Consequently, the portion of the leggings which covers the lower torso is exposed to view as the wearer reaches or bends or moves about in the course of normal activity. Additionally, these garments are not always worn with a garment which covers the lower torso. They may be worn without such a garment according to the discretion of the wearer. Customs believes the donning of another garment to cover the lower torso when wearing leggings such as the garments at issue is a function of fashion and the personal perception of the individual regarding her own body image and how best to flatter it. It is not a matter of necessity as it would be in the case of tights. As the court noted in Children's Hose, tights consist of a portion which is not intended to be exposed, which is partially underwear. Customs believes the same cannot be said of the subject garments. They are not partially underwear. They may be worn as street wear without a garment to cover the lower torso if the wearer so chooses. Tights, on the other hand, if worn as street wear, must be worn with another garment covering the lower torso.

You have submitted some of your client's advertising material and copies of purchase orders which identify these garments as tights. While Customs will always consider such material, it must also recognize that such material may be self- serving. We have examined advertising material for leggings similar in appearance to your client's garments. It is -9-

interesting to find that in the Fall & Winter 1990 J.C. Penney Catalog, garments which are similar in appearance to those at issue are identified in the catalog as pants. They are identified as ankle-length pants, capri pants or simply pants. In one instance, a garment is identified as leggings in the descriptive material, yet identified as pants in a photograph of the garment. Leggings of the type at issue herein are often advertised either before, after, or alongside advertisements for tights. But, they are not advertised as tights or to be worn necessarily in the same manner as tights. Additionally, these garments are not displayed in the manner of tights, folded and packaged, but in the manner of trousers, individually hung on hangers. These garments are separately identified by the fashion industry and the retail industry and this is evident by available advertising material and the manner in which the garments are displayed in stores.

Customs contacted store buyers regarding leggings and tights. Two of these buyers were cooperative in answering questions regarding leggings and tights. Of course, the information provided was based on their personal opinions, however, we believe it to be informative considering their positions. Based on those conversations, Customs learned of the difference in the display of leggings from tights. Each buyer viewed tights and leggings as different articles. One buyer stated that leggings are sold in every department of the store; they are not limited to simply one area. This same buyer indicated that tights and leggings are worn differently. Leggings may be worn with an oversized sweater, but tights would not be so worn. The other buyer indicated she would not view leggings as pants or tights and that leggings are usually of a heavier fabric than tights. Customs views this information as supportive that tights and leggings, at least the ones at issue herein, are distinct articles and thus, differently classified.

Finally, you have claimed that based on the design, construction and intended function of your client's leggings, they should be classified as tights. Customs agrees with the court's statement in Hampco Apparel, Inc. v. United States, 12 CIT 92, 96 (1988), that "a fugitive use or uses does not take [a garment] out of the classification of its original and primary use." We simply disagree in this instance regarding the primary use of the garments at issue. While they may indeed be utilized by some for exercise or athletic activity, Customs is of the view that the garments will primarily be worn as street wear and any athletic use will be a fugitive use.

Having examined various classification arguments which have been presented regarding this merchandise, we return to the garments themselves, for it is the garments on which the classification decision is based. As stated earlier, Customs -10-

does not regard these garments as hosiery. On the contrary, these garments fall within an emerging class of merchandise known commercially as leggings and worn, in Customs view, principally as trousers by women and girls. Customs decision that the garments at issue herein are not a form of hosiery, but are trousers, is based upon, not only the manner in which the garments are worn, but also the overall appearance of the garments and the cotton/spandex knit fabric from which the garments are made. Customs believes the fabric utilized in manufacturing these garments is not fabric of the kind typically used in the manufacture of hosiery articles. Instead, it is not unlike cotton/spandex blend knit fabrics commonly used today to make form-fitting dresses, skirts and tops.

Having determined that the garments at issue herein are of a class of garments worn as trousers and commercially known as leggings, it is necessary to express caution in interpreting this ruling. The term leggings is being used liberally by the fashion industry to identify a range of garments which have in common the characteristic of being form-fitting. As with any range, there are extremes. Customs is of the view that that is true of leggings. There are garments currently identified as leggings which may be classifiable as tights depending on the nature of the garments and whether they fall within the meaning of tights as expressed by the court in Children's Hose.

The garments at issue herein are not of the fringe. They are within what Customs perceives to be in the main stream. They are among the majority of garments identified as leggings. These garments are worn in the manner of trousers, not tights. In addition, they are constructed of fabric not normally associated with hosiery articles such as tights, but of fabric in common use in today's ready-to-wear garments. Therefore, the subject garments, styles 4892G, 4812G, 4813, 4811, 4835, and 4999, are classifiable as women's trousers or shorts of heading 6104, HTSUSA.


NYRL 854333 of August 7, 1990, issued to your client, Regaliti, Inc., was in error. Pursuant to 19 CFR 177.9(d)(1), that ruling is hereby revoked. The garments classified therein, styles 4892G and 4812G, are classifiable as women's trousers of heading 6104.62.2010, HTSUSA. Garments classified in this heading are subject to duty at a rate of 16.7 percent ad valorem and fall within textile category 348.

In your February 19, 1991, supplemental submission, you presented Customs with a copy of a ruling issued to your client's manufacturer from the Hong Kong Trade Department. The ruling classified several samples of leggings in category 359, -11-

including the two styles classified by Customs in NJRL 857485 as trousers. The ruling points out that the classification advice given therein is not binding on the importing country which may apply different classification criteria. While this ruling is of interest to Customs in that it serves to illustrate the existence of discord and confusion on the classification of these garments, as pointed out by the Hong Kong Trade Department in their ruling, it is not binding on the U.S. Customs Service.

The Hong Kong Trade Department ruling classified the garments by category. Customs does not classify by category. Category designation is the responsibility of the Committee for the Implementation of Textile Agreements (CITA). On September 10, 1991, in an effort to clarify the scope of categories 359/659 with regard to tights contained therein, CITA issued a directive to the Commissioner of Customs to amend the definition of tights contained in the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88. This directive appeared in the September 16, 1991, issue of the Federal Register. Pursuant to the directive from CITA, Customs will apply the new guideline regarding tights to determine the proper textile category for goods exported to the United States on or after January 1, 1992.

Due to the apparent confusion regarding the classification of your client's garments as evidenced by the conflicting rulings which were issued, Customs will delay the effective date of this ruling until January 1, 1992, with respect to the revocation of NYRL 854333 of August 7, 1990. This action is taken pursuant 19 CFR 177.9(3)(1). In addition, with the agreement of the Commerce Department and in accordance with the September 10, 1991, directive from CITA, Customs will accept category 359 visas for shipments of styles 4892G and 4812G for which your client has already contracted and which are shipped to the United States prior to January 1, 1992.

As to your request for detrimental reliance in regard to rulings BORL 857484 and NJRL 857485 issued to your client in November 1990, Customs will issue its response in a separate letter.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office. -12-

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.


John Durant, Director
Commercial Rulings Division